Posts Tagged ‘contempt’

As everyone reading this is probably aware, last Monday the website Gizmodo announced an exclusive look at Apple’s iPhone 4, which hasn’t been officially released yet. In their post (here), they said “you are looking at Apple’s next iPhone. It was found lost in a bar in Redwood City, camouflaged to look like an iPhone 3GS. We got it. We disassembled it. It’s the real thing, and here are all the details.” The post was written by blogger Jason Chen, and featured video of him showing details of the phone, and a lot of photos.

As time went on (see all the posts here), it came out that Gizmodo had paid $5,000 for the phone. The guy they bought it from wasn’t the phone’s owner, but had merely found it in a beer garden back in March. An Apple employee had lost it there.

So, if they bought it from someone who wasn’t the owner, and they knew it was supposed to be a secret, did the folks at Gizmodo commit any crimes here?

Law enforcement got involved very fast. By Friday, law enforcement in San Mateo had gotten a search warrant (viewable here) to seize Jason Chen’s computers, disks, drives, and any records pertaining to the Apple prototype 4G iPhone.

The search warrant was executed that same day, and a bunch of computer stuff was seized (the inventory is also viewable here).

Yesterday, the chief deputy district attorney for San Mateo County told the WSJ’s “Digits” blog (here) that nobody’s saying a crime happened or not. They’re still investigating.

Meanwhile, however, Gawker Media (the owner of Gizmodo) issued a letter on Saturday (viewable here) stating that “under both state and federal law, a search warrant may not be validly issued to confiscate the property of a journalist.”

In support of that statement, Gawker Media cited California Penal Code §1524(g) (viewable here), which prohibits search warrants for items described in Evidence Code §1070.

Evidence Code §1070 (here) says a judge can’t hold a journalist in contempt for refusing to disclose his sources, or for refusing to disclose unpublished information gotten while preparing a story.

So we have to ask, does Gawker Media know what it’s even talking about?

We took an unexpected trip out of state until yesterday, and so haven’t had a chance to catch up on the latest in the ongoing saga involving allegations of prosecutorial misconduct in the Sen. Ted Stevens case. When last we left off, District Judge Emmet Sullivan had ordered a status hearing for last Friday, the 13th.

In Friday’s status hearing, Judge Sullivan held four DOJ lawyers in contempt, for failing to turn over 33 documents to the defense. These documents pertained to December’s whistleblower claims of FBI agent Chad Joy, which had raised concerns of prosecutorial misconduct.

The judge had ordered these documents turned over on January 21. At first, the prosecutors said the documents were protected by the work-product doctrine. But then, even though they later determined that the doctrine did not apply, they still didn’t hand them over to the defense. At the hearing, the DOJ couldn’t give a good reason for the non-production, and so the judge held the lawyers in contempt.

The contempt order was imposed against William Welch II, the chief of the Public Integrity Section of the DOJ which had prosecuted Sen. Stevens. Also held in contempt were Brenda Morris, the section’s deputy chief and the lead prosecutor at trial; Patricia Stemler, chief of the Appellate Section of the Criminal Division; and Kevin Driscoll, a trial attorney with the Public Integrity Section. The order against Driscoll was revoked the following day, however, as he had only recently joined the prosecution team, and had not been a party to the relevant pleadings. Judge Sullivan stated that he would not impose sanctions until the case was over.

On Monday, Welch announced that the trial team of Brenda Morris, Nicholas March and Edward Sullivan were off the case, and would have no further role in the litigation of the charges of prosecutorial misconduct. This only makes sense, as they are necessarily witnesses to their own conduct, and will probably need to testify themselves. What is surprising is that the DOJ waited so long to take this simple action.

Welch added that the government will now turn over internal DOJ documents related to agent Joy’s allegations of misconduct, including memos and emails of the trial prosecutors. Again, what is surprising is not that this material is being disclosed, but that it took so long to do so. This notwithstanding Welch’s statement that the DOJ “understands that the interests of the parties and the public will be advanced by a prompt airing of these claims, and that additional delay relating to the whistleblower-status issue does not advance that cause.”

Nathaniel Burney writes The Criminal Lawyer mainly for his own amusement and that of his sexy sexy followers. Although he is brilliant, talented and charming, he's modest enough to admit that he's also dashingly handsome. You can learn more about him at his firm's website.

This blog does not constitute legal advice, and does not create or imply any attorney-client relationship. If you have a real legal issue, the internet is not a substitute for a real live lawyer. Your local county bar association should be able to recommend one for you.